Appeal to Third Circuit Court in New Jersey Lawsuit
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Transcript of Appeal to Third Circuit Court in New Jersey Lawsuit
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United States Court of Appeals
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i. Appellants State A Claim Under The Equal Protection Clause OfThe Fourteenth Amendment Of The United States ConstitutionBecause The State Has Given One Class Of Voters Access To AnIntegral Stage Of The Election, And Not Others. .............................. 30
ii. Appellants State A Claim Under The First Amendment Of TheUnited States Constitution Because The State Cannot Condition TheExercise Of One Right On The Forfeiture Of Another. ..................... 36
D. The Lower Court Erred By Relying On Precedent Related ToWhether An Independent Voter Has The Right To Vote In A PoliticalParty's Private Primary Rather Than Precedent Related To The Right OfAll Individual Voters To Cast An Equally Meaningful Vote. ............... 38
i. Appellants Assertion Of the Right To Vote At An Integral Stage OfThe Election Is Based Upon Long-Standing Precedent ..................... 38
ii. The District Court Mistook A Claim Concerning A VotersFundamental Right For A Challenge To A Political Partys State-Granted Right. .................................................................................... 40
II. ARGUMENT ON THE STATE CLAIMS ........................................ 44
A. The Shield Of State Sovereignty Does Not Apply To State ClaimsBecause The Suit Is Actually Against the Individual Charged WithEnforcement Of The State Law ............................................................. 44
CONCLUSION ............................................................................................ 45
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TABLE OF AUTHORITIES
Cases
Anderson v. Celebrezze , 460 U.S. 780 (1983) ........................................ 24, 26
Baker v. Carr , 369 U.S. 186 (1962) ............................................................. 39
Burdick v. Takushi , 504 U.S. 428 (1992) ............................................... 24, 26
California Democratic Party v. Jones , 530 U.S. 567 (2000) ...........................25, 27, 29, 36, 41, 43
Carrington v. Rash , 380 U.S .89 (1965) ....................................................... 20
Cool Moose Party v. State of Rhode Island , 183 F.3d 80 (1999) ................. 26
Council of Alternative Political Parties v. Hooks , 179 F.3d 64 (3d Cir. 1999) ................................................................................................................... 40
Crawford v. Marion County Election Bd. , 553 U.S. 181 (2008) .................. 37
Democratic Party v. Nago , 982 F. Supp. 2d 1166 (2013) ............................ 34
Dunn v. Blumstein , 405 U.S . 330 (1972) ................................................ 19, 20
Eu v. San Francisco County Democratic Cent. Comm , 489 U.S. 214 (1989) ............................................................................................................. 29, 41
Ex parte Young , 209 U.S. 123 (1908) .......................................................... 45
Friedland v. State , 374 A.2d 60 (1977). ....................................................... 20
Greenville County Republican Party Exec. Comm. v. South Carolina , 824 F.Supp. 2d 655 (2011) .................................................................................. 34
Grey v. Sanders , 372 U.S. 368 (1963) .......................................................... 35
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) ............ 32, 37
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Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) ............................................................. 25
Idaho Republican Party v. Ysursa , 765 F. Supp. 2d 1266 (2011) ................ 34
Kramer v. Union Free School Dist. , 395 U.S . 621 (1969) ........................... 20
MCI Telecomm. Corp. v. Bell Atlantic Pa. , 271 F.3d 491 (3d Cir. 2001) .... 45
Nader v. Schaffer , 417 F. Supp. 837 (D. Conn. 1976) affd, 429 U.S. 989(1976) ........................................................................................................ 41
Norman v. Reed , 502 U.S. 279 (1992) ......................................................... 24
Phillips v. County of Allegheny , 515 F.3d 224 (3d Cir. 2008) ....................... 6
Pryor v. NCAA , 288 F.3d 548 (3d Cir. 2002) ................................................. 6
Reynolds v. Sims , 377 U.S. 533 (1964) .............. 18, 20, 22, 32, 33, 35, 36, 39
Ripon Soc. v. National Republican Party , 525 F.2d 548 (D.C. Cir. 1975) ......19, 34
Smith v. Allwright , 321 U.S. 649 (1944) ................................................ 28, 29Storer v. Brown , 415 U.S. 724 (1974) .......................................................... 24
Tashjian v. Republican Party , 479 U.S. 208 (1986) .............................. 26, 28
Terry v. Adams , 345 U.S. 461 (1953) ..................................................... 28, 29
Timmons v. Twin Cities Area New Party , 520 U.S. 351 (1997) ............. 24, 26
United States Term Limits v. Thornton , 514 U.S. 779 (1995) ...................... 21
United States v. Classic , 313 U.S. 299 (1941) ....................................... 19, 20
Washington State Grange v. Washington State Republican Party, 552 U.S.442 (2008) ..................................................................................... 13, 18, 43
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Wesberry v. Sanders , 376 U.S. 1 (1964) ...................................................... 42
Williams v. Rhodes , 393 U.S. 23 (1968) ...................................................... 36
Yick Wo v. Hopkins , 118 U.S. 356 (1886) .................................................... 36
Constitutional Provisions
U.S. Const. amend. I ...................................................................................... 6
U.S. Const. amend. XIV ................................................................................. 6
U.S. Const., Art. I, 2 .................................................................................. 20
U.S. Const. Art. II, 1 ................................................................................. 20
N.J. Const. Art. I, Para. 18 ............................................................................. 6
N.J. Const., Art. II, Sec. I ............................................................................... 6
N.J. Const., Art. VIII, Sect. III, Para. 3 .................................................... 7, 45
Statutes
28 U.S.C. 1331 ............................................................................................ 5
28 U.S.C. 1343 ............................................................................................ 5
28 U.S.C. 1367 ............................................................................................ 5
28 USC 1291 ............................................................................................... 5
42 U.S.C. 1983 ............................................................................................ 6
N.J.S.A. 10:6-2(c) ....................................................................................... 6
N.J.S.A. 19:1-1 ........................................................................................ 8, 9
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1
ISSUES PRESENTED FOR REVIEW 1
Federal Claim Issues
1) Are the State of New Jerseys (State) non-presidential primary elections an
integral stage of its election process?
2) Does every voter have a fundamental right to vote at all integral stages of an
election?
3) Do Appellants state a claim under the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution when the State creates two
classes of voters: (i) registered voters who qualify to vote in the States funded,
administered, and sanctioned primary elections by virtue of joining the
Democratic or Republican political parties; and, (ii) registered voters who are
not qualified to vote in primary elections because they have not joined the
Republican or Democratic political parties?
4) Do Appellants state a claim under the First Amendment of the United States
Constitution when the State requires voters to join the Republican or
Democratic political parties as a condition to gaining access to an integral stage
of the States election process?
5) Did the lower court err by relying on precedent related to a political partys
right to control access to its candidate nomination proceedings, rather than
1 All issues were preserved in Plaintiffs Brief in Opposition to the DefendantsMotion to Dismiss (Docket Entry 16).
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precedent related to the rights of individual voters to participate in the election
process?
State Claim Issue
1) Does the shield of state sovereignty apply to the state claim in this case?
PRELIMINARY STATEMENT
The right to vote derives from citizenship, not by joining the Republican
Party, the Democratic Party, or any other organization.
Appellants presented the lower court the following question: Does the State
have an obligation to afford every registered voter an opportunity to cast a
meaningful vote at each integral stage of the States election process? Joint
Appendix (JA) A-34.
The lower court did not respond to the question presented by Appellants, but
instead responded to the following question posed by Appellee: If, as a part of its
primary election system, the State elects to provide a political party with a forum
for the selection of its party candidates for public office, are registered voters who
are not members of that political party legally entitled to participate in that partys
candidate selection forum? JA A-8.
These are fundamentally different questions. As such, the lower courts
decision failed to address Appellants federal constitutional claims.
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challenged, and address Appellants claims related to the right of all legally
entitled and registered individuals to cast a meaningful vote.
Voters who have not affiliated with a political party are absolutely
prohibited from participation in the States primary election. Voters who have
affiliated with political parties other than the Democratic and Republican parties
are, for all practical purposes, prohibited from participation in the primary election
by virtue of having made an ideological choice to affiliate with a political party
that does not meet the States threshold for major party status. Therefore, the State
does not treat voters equally.
The State should not be allowed to fund, administer, and sanction the results
of a primary election for the exclusive benefit of the Republican and Democratic
political parties and their members; particularly where that primary election
materially impacts the outcome of the States election process. To uphold the lower
courts ruling would be to permit and defend this outcome.
The lower courts decision, if allowed to stand, would strengthen the power
of the two (2) major parties to effectively control elections for public office even
though they command the loyalty of a smaller and smaller portion of the electorate.
Thus, the direct partisan primary, the key progressive era reform designed to
enhance the power of the individual voter, no longer does so. Simply put, the
States primary election system has outlived its intended purpose.
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Appellants seek court protection of their rights because the State has not
taken it upon itself to scrutinize its century old primary election practices that
disenfranchise nearly half of the States registered voters. Appellee, who in her
private capacity is a member of one of the two parties given special rights under
New Jersey's current election scheme, argued that because no fundamental right
was at issue, no fact-finding was required.
The lower court agreed.
STATEMENT OF JURISDICTION
The lower court exercised jurisdiction over the federal claims pursuant to 28
U.S.C. 1331, 1343. The lower court had jurisdiction over the state claims
pursuant to U.S.C. 1367. The lower court entered judgment on August 14, 2014,
granting Defendants motion to dismiss. JA A-15. A timely notice of appeal was
filed in the lower court on September 9, 2014. JA A-1. This court has jurisdiction
over the appeal pursuant to 28 USC 1291.
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The second, related, set of grievances concerned the States violation of New
Jersey constitutional prohibitions against the use of public funds for a private
purpose. JA A-39. N.J. Const., Art. VIII, Sect. III, Para. 3.
On May 9, 2014, Appellee filed a Motion to Dismiss Pursuant to Fed. R. Civ.
P. 12(b)(1) and 12(b)(6) and a Brief in Support of that motion (hereinafter together
the Motion to Dismiss). JA A-23. The Motion to Dismiss contended the lower
court did not have subject matter jurisdiction for two reasons: (1) Appellants lack
of standing, and (2) New Jerseys sovereign immunity as to the claims based upon
state law. Docket Entry 11. The Motion to Dismiss further asserted Appellants
failed to state a claim upon which relief could be granted, alleging the issues
involved in this matter have been decided in previous cases. Id .
Appellants opposed the Motion to Dismiss, submitting a Motion in
Opposition on July 3, 2014. The opposition, among other matters, addressed
Appellants interest in being allowed to cast a meaningful vote in the States
election process and noted that Appellants expressly disclaimed any interest in
voting in the candidate nomination proceedings of any specific political party.
Docket Entry 16. Appellee filed a reply to the opposition on July 28, 2014, and the
Appellants filed a surreply to the reply on August 12, 2014. Docket Entry 19;
Docket Entry 23.
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(10%) of the total votes cast in a preceding general election. JA A-32; N.J.S.A.
19:1-1. Of the eight (8) recognized political parties in New Jersey, only the
Republican and Democratic parties qualified to hold Candidate Nomination
Proceedings as part of the States Primary Elections in 2012 and 2013. JA A-32.
Voters who registered to vote without affiliation with a political party, or with
affiliation to a political party other than the Republican or Democratic parties were
absolutely disqualified from participating in these Primary Elections because under
the States election law, an individual voters right to participate in the Primary
Elections is conditioned on joining a qualified political party. JA A-33; N.J.S.A.
19:23-45.
The States election process includes two stages: a Primary Election and, a
following general election. JA A-31. The States taxpayer funded Primary Election,
which directly impacts the outcome of the general election, is currently conducted
solely for the purpose of administering the Candidate Nomination Proceedings of
the Republican and Democratic parties, giving those select political parties an
unjustified advantage in the election process. 3
3 As a practical matter, the States current partisan Primary Election more oftenthan not decides the winner of the increasingly non-competitive general election.
Docket Entry 16, page 6. The imbalance created by the States Primary Electionsystem is not responsive to the reality of its present-day electorate; and theconsequences of this imbalance are real and immediate. Id .
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In 2012, 32.5% of New Jersey voters were registered Democrat, 19.7% were
registered Republican, 0.2% were registered as affiliated with a third party, and
47.6% were registered as unaffiliated with any political party. JA A-25. A full
2,621,197 registered voters, including four (4) of the Appellants and a vast
plurality of the balance of New Jerseys registered voters, were prohibited by State
law from participating in the 2012 Primary Election solely on the basis of
exercising their right not to affiliate with either the Democratic or Republican
parties. JA A-33.
New Jerseys Primary Election system excludes, entirely, 47 percent of the
States electorate. JA A-33. This imbalance between party and non-party affiliation
is expanding nationwide and, specifically, in New Jersey, as the number of voters
exercising their right not to affiliate with a political party is growing steadily, both
as an absolute number and as a percentage of all registered voters. Docket Entry 16,
page 5. When raw numbers are considered, the number of New Jersey voters who
have affirmatively chosen to not affiliate with a political party far exceeds the total
number of voters registered with either the Republican or Democratic political
parties.
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In 2013 alone, New Jersey spent at least $12 million 4 conducting non-
presidential special primary elections, or over $92 per vote actually cast in the
Republican and Democratic Candidate Nomination Proceedings alone. JA A-32.
Individual Appellants Mark Balsam, Charles Donahue, Hans Henkes, and
Rebecca Feldman are registered as unaffiliated voters, and as a result were not
permitted to vote in New Jerseys 2013 Primary Election. JA A-29. They will
likewise be excluded in the future because of their choice not to associate with any
political party.
Individual Appellant Jaime Martinez is a registered Democrat, and
individual Appellants William Conger and Tia Williams are registered Republicans.
JA A-31. These Appellants were required to forfeit their right of non-association in
order to exercise their right to vote in the 2013 Primary Election. Id . These
Appellants have been coerced by law to affiliate with a political party as a
condition to casting a meaningful vote in New Jerseys Election Process. Id .
Organizational Appellants Independent Voter Project and Committee for a
Unified Independent Party seek to protect the rights of all voters to cast a
meaningful vote. JA A-29.
REMEDIAL CONSIDERATIONS
4 This does not include fixed State administrative costs that are expended to the benefit of the qualified political parties.
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Appellants seek an order declaring New Jerseys election process governing
the States non-presidential primaries unconstitutional on its face and as applied.
Appellants also seek a preliminary and permanent injunction restraining Appellee
from funding, administering, and sanctioning the results of its current Primary
Election system for all non-presidential elections.
In that regard, Appellants have not suggested that the court require the New
Jersey legislature to adopt a particular election system in place of its current system.
JA A-42. Rather, numerous and real alternatives to New Jerseys Election Process
exist within the United States and elsewhere, and the New Jersey legislature should
be directed to design an election system within the constraints of constitutional
guarantees afforded to both associations of individuals and individuals themselves.
A potential alternative, for example, could be that the State conduct an
other nomination proceeding, in addition to the Republican and Democratic
Candidate Nomination Proceedings, so that voters not affiliated with the
Republican or Democratic parties have an opportunity to participate at this integral
stage of the election process.
Still, other election systems such as Top-Two, Ranked Choice, Instant
Runoff, Approval Voting, and Proportional Representation, have been
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offered as potential alternatives. 5 Any number of yet unknown remedies, in
addition to these alternatives, may pass constitutional scrutiny.
Of note, other states, including California and Washington, have
implemented nonpartisan Top-Two primary election systems. These nonpartisan
primaries have not obstructed the ability of those states to hold orderly elections,
have not resulted in voter confusion, and have not violated the associational rights
of political parties and their members. And the Supreme Court has upheld their
constitutionality:
The [Washington nonpartisan primary] law never refers to thecandidates as nominees of any party, nor does it treat them as such. Tothe contrary, the election regulations specifically provide that the
primary does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of twofor the general election.
Washington State Grange v. Washington State Republican Party, 552 U.S.442, 453, (2008) (internal quotations omitted).
In short, Appellants contend the State can and must do better than its more
than century old system and strongly believe that judicial intervention is necessary
to compel the State to consider and implement an alternative system. 6 In making
this claim, Appellants have merely asked the State to ensure that the state funded,
5 Stina Larserud, Electoral Systems Index , Ace Project (March 19, 2014)http://aceproject.org/ace-en/topics/es/topic_index6 Unlike California and Washington, New Jersey does not have an initiative andreferendum process that would allow the voters to achieve such election reformdirectly.
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administered, and sanctioned Primary Election not function as a private enterprise
that deprives Appellants of their ability to cast a meaningful vote, and in doing so,
confers on two (2) political parties and their membership special access to our
democracy. As a consequence, this gives the Republican and Democratic parties a
gratuitous advantage in the States Election Process.
SUMMARY OF THE ARGUMENT
New Jerseys state funded, administered, and sanctioned election process
includes a Primary Election that is currently conducted for the exclusive purpose of
selecting the Republican and Democratic Party nominees. Yet, more than forty-
seven percent (47%) of New Jerseys registered voters exercised their right not to
associate with the Republican or Democratic parties and, on that basis alone, are
excluded by State law from participating in the States Primary Elections.
Contrary to Appellees assertion, on which the lower court based its decision,
Appellants have not and do not seek to participate in a political partys Candidate
Nomination Proceeding. Rather, Appellants contend that the States primary
election is an integral part of the States election process and, therefore, the State
must adopt a system that provides every voter, irrespective of political party or
non-party affiliation, with a meaningful opportunity to cast a vote.
Neither Appellee nor the lower court articulated a legally cognizable State
interest in continuing New Jerseys Primary Election system that excludes nearly
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half of all registered voters from participation. Indeed, Appellees rationale treats
the interests of the Republican and Democratic parties and those of the State as one
and the same. Yet, the only legally cognizable interest of the State in this case is a
regulatory one, which is limited, separate, and distinct from the private interests in
preserving the status quo on which Appellee has rested the States defense.
Moreover, no political party has availed itself of the opportunity to join this
case. Reinforced by the lower courts ruling, the State has not provided those
political parties with a reason to come forward and assert their interests on their
own behalf. At the very least, this court should demand that the interests in this
case are appropriately represented, as Appellants contend the State is carrying
forward a case that inures only to the benefit of the Republican and Democratic
parties.
New Jerseys current Primary Election serves the expressed purpose of
selecting political party nominees and benefits only to the two major parties and
their members. See N.J.S.A. 19:23-5. This is a predominantly private purpose
because the rights of political parties to limit who can participate in their respective
Candidate Nomination Proceedings outweighs the rights of any unaffiliated voter
to participate in them, even when that unaffiliated voter has no other alternative
way to cast a vote at this integral stage of the election.
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Appellants contend that, while states are required to respect the rights of
individuals to associate and to not associate with others, no state can do so in a way
that infringes on an individuals right to cast a meaningful vote unless such an
infringement is justified by the appropriate countervailing regulatory interest of the
State in ensuring an orderly election process.
The issue in this case is quite simple: is the States curtailment on the
individual right to vote at every integral stage of an election justified by a real and
countervailing need of the State to ensure an orderly election? The lower courts
rationale for summary dismissal of Appellants case, with prejudice, was based on
an inaccurate determination that, [i]ndeed, [Plaintiffs] entire lawsuit at least the
federal portion of it proceeds from the premise that all registered voters have a
fundamental right to vote in the primary election conducted by political parties
they are not members of. JA A-8 (emphasis added).
Appellants have not asked this court (and did not ask the lower court) to
issue a decision that would require political parties to allow non-party members to
access their Candidate Nomination Proceedings. Rather, Appellants have
proceeded from the premise that the State cannot fund, administer, and sanction
an integral stage of its election process that excludes a near majority of all
registered voters.
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meaningful voice at the nominating stage of the election process. 7 Importantly, for
context, the State has no legal obligation to provide any political party with a
private forum for its Candidate Nomination Proceedings, as evidenced by the fact
that the State only provides a forum for Candidate Nomination Proceedings for the
two major political parties and not any of the other unqualified political parties in
the State. See Washington State Grange , 552 U.S. at 452 n.7.
Proponents of state-administered primary elections wanted to remove power
from partisan insiders and thereby democratize the overall election process. 8 In
1904, the first state adopted a mandatory primary election law. By 1910, forty-four
of forty-six states had followed suit. 9
The advent of primary elections was in recognition of the principle that the
fundamental right to vote includes the right to exercise a meaningful vote. See
Reynolds v. Sims , 377 U.S. 533, 555 (1964). By the same logic, the court has held
that when the Primary Election effectively controls the choice of viable candidates,
the right to vote cannot be truly meaningful when restricted to the general election.
7 Christine M. Collins, Primary Elections A look into Four Primary ElectionSystems , California Initiative Review (2010), available at http://www.mcgeorge.edu/Documents/Publications/CIR-primaryelections.pdf8 Christine M. Collins, Primary Elections A look into Four Primary ElectionSystems , California Initiative Review (2010), available at http://www.mcgeorge.edu/Documents/Publications/CIR-primaryelections.pdf 9 Todd J. Zywiki, Beyond the Shell and Husk of History: The History of theSeventeenth Amendment and its Implications for Current Reform Proposals , 45Clev. St. L. Rev. 165, 191, (1997).
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Dist. , 395 U.S. 621, 626 (1969); Carrington v. Rash , 380 U.S. 89, 96 (1965). The
fundamental right to a meaningful vote includes voting at the primary stage, where
the primary is an integral part of the election process. Classic , 313 U.S. at 318. In
fact, the courts have held that the right to vote in the Primary Election is as
protected as voting in a general election. Friedland v. State , 374 A.2d 60, 63
(1977). 12
The United States Constitution gives states control over the administration
of the election process. U.S. Const., Art. I, 2; Art. II, 1. But a state may not
violate fundamental constitutional rights in carrying out this mandate. See, Dunn ,
405 U.S. at 336; Kramer , 395 U.S. at 626; and Carrington , 380 U.S. at 96.
Appellants assert a principle that the court has already recognized: every
individual voter has a fundamental right to an equally meaningful vote. Reynolds ,
377 U.S. at 565. This right can only be protected when the State regulates all
integral stages of an election in a way that protects each voters right to full and
meaningful participation.
12 The lower court distinguished Friedland on the grounds that the case, in factrejected the exact same challenge to N.J.S.A 19:23-45 Plaintiffs advance here.JA A-10. In Friedland , the court held that the fundamental rights of political
parties must be recognized even at the primary stage of the election. Friedland ,374 A.2d at 494. Appellants in this case, however, cite to Friedland not to advancethe fundamental rights of the political parties, but rather, for the proposition thatthe rights of individual voters must be similarly protected at all integral stages ofthe election.
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As the Supreme Court held in Classic, before the Voting Rights Act was
adopted, and before reapportionment was subjected to federal scrutiny:
Unless the constitutional protection of the integrity of "elections"extends to primary elections, Congress is left powerless to effect theconstitutional purpose, and the popular choice of representatives isstripped of its constitutional protection save only as Congress, bytaking over the control of state elections, may exclude from them theinfluence of the state primaries.
Such an expedient would end that state autonomy with respect toelections which the Constitution contemplated that Congress should
be free to leave undisturbed, subject only to such minimum regulationas it should find necessary to insure the freedom and integrity of thechoice.
313 U.S. at 319-20.
Yet, in this case, the federal causes of action were dismissed by the lower
court on the grounds that the state may qualify the fundamental right to vote in
its Primary Election by requiring registered voters to join either the Republican orDemocratic parties. JA A-9.
It is Appellants position that, by its very nature, the fundamental right to
vote cannot be qualified by forced association. [T]he federal right to
votedo[es] not derive from the state power in the first instance but that belong to
the voter in his or her capacity as a citizen of the United States. United States
Term Limits v. Thornton , 514 U.S. 779, 844 (1995) (Kennedy, concurring).
Requiring a registered voter to affiliate with a political party only serves to
privatize an integral stage of the process, frustrate the constitutional purpose of the
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entire election, and legitimize the Democratic and Republican parties monopoly
over the election process, while at the same time alienating nearly half of all
registered voters.
As the Supreme Court articulated 50 years ago in Reynolds v. Sims , when it
held that each state must reapportion their districts equally, [t]he conception of
political equality from the Declaration of Independence, to Lincoln's Gettysburg
Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean
only one thing -- one person, one vote. 377 U.S. at 568. The Court went on to
state:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours isa representative form of government, and our legislatures are thoseinstruments of government elected directly by and directlyrepresentative of the people, the right to elect legislators in a free and
unimpaired fashion is a bedrock of our political system. Id . at 623 (internal quotations omitted).
The lower court held that, Classic itself presupposes that the right it
acknowledges only applies to voters who were qualified to cast votes in
Louisiana's Democratic primary. JA A-9. The application of this holding is proper
only insofar as it is applied to a party members right to vote in his or her partys
private Candidate Nomination Proceedings. However, the Supreme Courts
reasoning in Classic supports a broader application in this case than the lower court
presumes:
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Moreover, we cannot close our eyes to the fact, already mentioned,that the practical influence of the choice of candidates at the primarymay be so great as to affect profoundly the choice at the generalelection, even though there is no effective legal prohibition upon therejection at the election of the choice made at the primary, and maythus operate to deprive the voter of his constitutional right of choice.
313 U.S. at 319.
In Classic , the court held that members of a political party have a
fundamental right to cast a meaningful vote in their Candidate Nomination
Proceedings, when such proceedings are an integral stage of the election. Id . at 314.
If the fundamental right did not exist at this stage of the election, the Court
recognized, these voters would be deprived of their constitutional right to choose
who governs them. Id .
In this case, New Jerseys Primary Election, taken as a whole, is an integral
stage of the election. For the State to provide the Republican and Democratic parties and their members with exclusive access to a stage of the election, where
the practical effect of the selection of candidates so profoundly affects the choices
on the ballot at the general election, deprives Appellants of their constitutional
right to cast a meaningful vote. Legislators represent people, not parties.
Therefore, Appellants citation to Classic serves to highlight the need for
judicial intervention in protecting the individual voters fundamental right to vote
in this case. At the very least, it supports the need for this court to require fact
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California Democratic Party v. Jones , the linchpin of the lower courts ruling,
Justice Scalia wrote:
Respondents proffer seven state interests they claim are compelling.Two of them -- producing elected officials who better represent theelectorate and expanding candidate debate beyond the scope of
partisan concerns -- are simply circumlocution for producingnominees and nominee positions other than those the parties wouldchoose if left to their own devices. Indeed, respondents admit asmuch. For instance, in substantiating their interest in"representativeness," respondents point to the fact that "officialselected under blanket primaries stand closer to the median policy
positions of their districts" than do those selected only by partymembers. Brief for Respondents 40. And in explaining their desire toincrease debate, respondents claim that a blanket primary forces
parties to reconsider long standing positions since it "compels [their]candidates to appeal to a larger segment of the electorate." Id. at 46.Both of these supposed interests, therefore, reduce to nothing morethan a stark repudiation of freedom of political association: Partiesshould not be free to select their own nominees because thosenominees, and the positions taken by those nominees, will not becongenial to the majority.
530 U.S. 567, 582 (2000).
The Court definitively held that the private interests of political parties are
not to be conflated with the public interests of the state.
Significantly, the majority in Jones relied on a case in which it was held that
the South Boston Allied War Veterans Council had the right to exclude openly gay
and lesbian organizations from participating in its annual St. Patricks Day parade.
530 U.S. at 582 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U.S. 557 (1995)). In so doing, the Courts majority recognized
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that because the plaintiff was a private association it should, therefore, be accorded
the private right to set its terms of association.
It would be wrong to uphold the State interest in this case purely based on its
interest in protecting private associational rights. As the First Circuit Court of
Appeals noted in upholding the right of a political party to control access to its
Candidate Nomination Proceedings against a states attempt to prohibit members
of one political party from voting in another partys Candidate Nomination
Proceedings when that party attempted to permit such participation by non-party
members, the State must at least articulate [its own] plausible and constitutionally
legitimate justifications. Cool Moose Party v. State of Rhode Island , 183 F.3d 80,
88 (1999) (citing Timmons , 520 U.S. at 378 (Stevens, J., dissenting)).
The Supreme Court has been more direct in asking for, "the precise
interests put forward by the State as justifications for the burden imposed by its
rule, taking into consideration the extent to which those interests make it
necessary to burden the plaintiff's rights." Burdick , 504 U.S. at 434 (1992)
(quoting Anderson , 460 U.S. at 789 and Tashjian v. Republican Party , 479 U.S.
208, 214 (1986))(emphasis added).
The lower court accepted Appellees false premise that Appellants sought to
vote in major political party Candidate Nomination Proceedings. See JA A-8. As a
result, Appellee and the lower court have yet to address what legitimate interest of
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Democratic Partys argument was rejected by the Court on the basis that their
private right of association did not outweigh the constitutional guarantees of the
Fifteenth Amendment. Adams , 345 U.S. at 466; Allwright , 321 U.S. at 663-64.
Appellants in this case need not go as far as the Court reached in Adams and
Allwright , because the private right of association is not being challenged by
Appellants. Rather, as Jones makes clear, a political partys candidate selection
process is a private affair and should be protected from state intrusion unless
necessary to protect other constitutional guarantees. Jones , 530 U.S. at 573 n.4 ; see
also Eu v. San Francisco County Democratic Cent. Comm , 489 U.S. 214, 223
(1989). Appellants agree with the holding of Jones and are not seeking in this case
to open major party Candidate Nomination Proceedings to participation by non-
party members. Appellants instead challenge whether the State has an interest in
protecting the Republican and Democratic parties from competition in the election
process, generally.
In short, Appellants challenge the decision of the State to fund, administer,
and sanction the results of a closed Primary Election that excludes more than forty-
seven (47%) of all registered voters. This challenge rests on two facts which
Appellee must concede: (1) every individual has a fundamental right to cast a
meaningful vote; and, (2) the State has no obligation to provide political parties
with a state funded, administered, and sanctioned Candidate Nomination
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Proceeding in the first place. Appellants challenge is reinforced by the apparent
fact that the only rationale offered by Appellee for such an exclusionary system is
to protect the private rights of political parties, which are not at issue in this case.
On what basis then can the State legally disregard the rights of a near majority of
its voters to further the private interests of the major political parties?
Appellants, by way of this appeal, simply ask that the judiciary answer this
question.
i. Appellants State A Claim Under The Equal Protection ClauseOf The Fourteenth Amendment Of The United StatesConstitution Because The State Has Given One Class OfVoters Access To An Integral Stage Of The Election, And NotOthers.
In modern legal proceedings, there is risk in harking back to our founding, if
only because the other side and the court may perceive a naivety in the party
pushing this discussion, or a crude anti-government purpose to the partys end.
Appellants assert the fundamental right to vote requires this court to go there and
to consider with an open mind the States Primary Election system and its impact
on individual voters.
Appellants, to the best of our knowledge, are the first plaintiffs to come
before the court without accepting the false premise that political parties are
entitled to exclusive control to the first stage of the States election process, the
Primary Election. Rather, Appellants have come before the court as individual
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The consolidation of power in the major political parties has accelerated
rapidly over the past 75 years. Even the mainstream media has reorganized around
the duopoly and accepted the notion that a virtual pre-requisite for full voter
participation is party affiliation. 15 Over the same period, party affiliation has
declined so that today forty-two percent (42%) of voters nationally self-identify as
independents and more than forty-seven percent (47%) of all registered voters in
New Jersey have chosen not to affiliate with a major party when they registered to
vote. Opposition to Motion to Dismiss, Docket Entry 16, page 5.
These changes call for re-examination of what kinds of electoral systems
pass constitutional muster:
[T]he Equal Protection Clause is not shackled to the political theory ofa particular era. In determining what lines are unconstitutionallydiscriminatory, we have never been confined to historic notions of
equality, any more than we have restricted due process to a fixedcatalogue of what was at a given time deemed to be the limits offundamental rightsNotions of what constitutes equal treatment for
purposes of the Equal Protection Clause do change.
Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 669 (1966).
As noted in Reynolds v. Sims , the complexions of societies and civilizations
change, often with amazing rapidityrepresentation schemes once fair and
equitable become archaic and outdated. 377 U.S. at 567. At the time that Reynolds
15 Amy Mitchell, Jeffrey Gottfried, Jocelyn Kiley, and Katerina Eva Matsa, Political Polarization & Media Habits , Pew Research Center (October 21, 2014), http://www.journalism.org/2014/10/21/political-polarization-media-habits/
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narrowing of the major parties bases of support, accompanied by the domination
of partisan primary elections by party activists, frustrates this purpose.
It should be of little surprise, therefore, that most state officials elected
within todays electoral landscape as well as other major party activists and leaders,
like those at the time of Reynolds, have vigorously opposed more inclusive election
reforms in the legislature and the courtroom, including Appellee in the case at
bar. 20
The right to an equal vote serves to prevent an entrenchment of any one
group of interests to the exclusion of others, because such an entrenchment in the
process of political choice is contrary to the democratic ideal. See Ripon , 525 F.2d
at 559-60 . Without equality of the right to vote within all integral stages of the
20 In Oregon and Arizona the major parties successfully defeated an effort to moveto a top-two system like that adopted by voters in California and Washington.Evan Wyloge, Failed Top-Two Primary Measure Had Most Support Among
Independent Voters , Arizona Center for Investigative Reporting (2014) http://azcir.org/failed-top-two-primary-measure-had-most-support-among-independent-voters/ ; Richard A. Clucas, The Oregon Constitution and the Quest
for Party Reform , 87 Or. L. Rev. 1061 (2008), available athttp://law.uoregon.edu/org/olrold/archives/87/Clucas.pdf. In Idaho the RepublicanParty commenced litigation that overturned the States open primary, whichallowed all voters to vote in the party primary of their chose without a requirementfor prior registration into that party. Idaho Republican Party v. Ysursa , 765 F. Supp.2d 1266, 1268 (2011). Similar challenges were rejected in South Carolina andHawaii. Democratic Party v. Nago , 982 F. Supp. 2d 1166, 1183 (2013);Greenville County Republican Party Exec. Comm. v. South Carolina , 824 F. Supp.2d 655, 672 (2011). In Hawaii the State Democratic Party has appealed, as has theGreenville County Republican Organization, the plaintiff in South Carolina.
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process, there is essential no meaningful right to vote at all. See Grey v. Sanders ,
372 U.S. 368, 380 (1963) (political equality extends to all phases of the election.)
New Jerseys election process creates two classes of voters: (1) major party
members who enjoy full participation in both the Primary Election and the general
election; and, (2) voters who, by reason of choosing not to associate with one of
the dominant political parties, are allowed only limited participation in the general
election. Because only Republican and Democratic party members may participate
in New Jerseys Primary Election, not all voters are treated equally.
As a natural consequence, the States Primary Elections have entrenched
Republican and Democratic parties minority interests to the exclusion of others,
including over 2.6 million New Jersey voters who have actively chosen not to
affiliate with either of the two. 21
Because the States Primary Election confers a special benefit to the
dominant political parties and their members to the complete exclusion of nearly
half of all registered voters, the Equal Protection Clause requires the court to fairly
balance all the rights being claimed in this case to the extent they may conflict.
21 It cannot be the case that a state is prohibited from requiring a voter to live in arural area to have full voting rights but can require a voter to join a party in orderto achieve a parity in voting power. See Reynolds , 377 U.S. at 557.
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ii. Appellants State A Claim Under The First Amendment Of TheUnited States Constitution Because The State CannotCondition The Exercise Of One Right On The Forfeiture OfAnother.
A state cannot condition the exercise of one right on the forfeiture of another.
See Reynolds , 377 U.S. at 557. Yet, New Jersey law requires that a voter qualify
for the right to vote in the Primary Election by joining a political party.
The First Amendment of the constitution protects the right of association. A
corollary of the right to associate is the right not to associate. Jones , 530 U.S. at
574. And, as recognized since early in United States history, [voting] is regarded
as a fundamental political right, because [it is] preservative of all rights. Yick Wo
v. Hopkins , 118 U.S. 356, 370 (1886).
As the Court reasoned in Williams v. Rhodes when it held that the State of
Ohios restrictive election laws, taken as a whole, imposed a burden on the right tovote and the First Amendment right of association, and therefore, the rights were
entitled to protection from state infringement under the Fourteenth Amendment:
The fact is, however, that the Ohio system does not merely favor atwo-party system; it favors two particular parties the Republicansand the Democrat and, in effect, tends to give them a completemonopoly. There is, of course, no reason why two parties shouldretain a permanent monopoly on the right to have people vote for oragainst them. Competition in ideas and governmental policies is at thecore of our electoral process and of the First Amendment freedoms.
393 U.S. 23, 32 (1968) .
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Similarly, in this case, the State cannot favor two particular political parties
in the competition of ideas and governmental policies. A citizen's right to a vote
free of arbitrary impairment by state action has been judicially recognized as a
right secured by the Constitution. Baker , 369 U.S at 208 . [E]ven rational
restrictions on the right to vote are invidious if they are unrelated to voter
qualifications. Crawford v. Marion County Election Bd. , 553 U.S. 181, 189
(2008). When poll taxes were prevalent, for example, the Supreme Court
recognized that, the right to vote is too precious, too fundamental to be so
burdened or conditioned. Harper , 383 U.S. at 670.
The Court in Harper reasoned that, [t]o introduce wealth or payment of a
fee as a measure of a voters qualifications is to introduce a capricious or irrelevant
factor. The degree of discrimination is irrelevant. Id . at 668. Similarly,
membership with a qualified political party is a capricious and irrelevant factor
in measuring a voters qualification to participate at an integral stage of an election.
No extended discussion is required to establish that the New Jersey laws
before us give the two old and established political parties a decided advantage
over individual voters, and thus place substantially unequal burdens on both the
right to vote and the right to associate. Williams , 393 U.S. at 31. Therefore,
Appellants, who have a fundamental right to associate or not associate by virtue of
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their citizenship, state a claim under the First Amendment of the United States
Constitution.
D. The Lower Court Erred By Relying On Precedent Related To WhetherAn Independent Voter Has The Right To Vote In A Political Party'sPrivate Primary Rather Than Precedent Related To The Right Of AllIndividual Voters To Cast An Equally Meaningful Vote.
Upholding the lower courts ruling would create a new precedent that
insulates integral stages of the election process from constitutional scrutiny. In
effect, this insulation gives the major political parties a State delivered monopoly
over its election process. See Williams, 393 U.S. at 393 (1968) (There is, of
course, no reason why two parties should retain a permanent monopoly on the right
to have people vote for or against them.)
i. Appellants Assertion Of the Right To Vote At An IntegralStage Of The Election Is Based Upon Long-Standing Precedent
Appellants federal claims are based on longstanding precedent. Appellants
claims have been characterized as novel only because prior case law concerns
issues of access to the private Candidate Nomination Proceedings of the political
parties. In substantially all of those cases, the plaintiff was a political party
asserting its right of association. No case has been brought to the court, to date, inregards to the more particular and immediate issue of whether a primary election,
taken as a whole, can violate the individual voters right (irrespective of that
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individuals race, religion, gender, or party affiliation) when a state makes the
primary an integral stage of the election.
The claims in this case can be summarized as: (1) a state may not conduct an
election system that abridges a federally protected right without meeting federal
constitutional scrutiny ( see Baker v. Carr , 369 U.S. 186, 231 (1962)), and (2) New
Jerseys current election process, which includes funding and administering a
closed non-presidential Primary Election, unconstitutionally dilutes the right of
some citizens to vote compared to others, in violation of the Supreme Courts
One-Person, One-Vote standard. See Reynolds at 567-68.
Despite Appellees misrepresentation of Appellants claims, and the lower
courts opinion that succumbs to that misrepresentation, Appellants have not asked
the court to allow independent voters to vote in the Republican and/or Democratic
Candidate Nomination Proceedings. Rather, Appellants simply assert that the State
has an obligation to protect each individual voters fundamental right to vote at
every integral stage of the election process. The States Primary Election, as
currently constructed, violates that right.
Appellants arguments should not be construed to attack the partisan nature
of elections nor the right of political parties to exclusive Candidate Nomination
Proceedings. Appellants challenge is narrower and more targeted. Appellants
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claims concern the obligation of the State to protect the voting rights of its citizens,
without challenging the rights of the political parties and their members.
Further, Appellants complaint should not be so broadly construed as to
include issues of candidates rights, or third party ballot access. Therefore, issues
such as a non-party candidates ability access to the general election ballot by way
of petition are wholly irrelevant. See e.g. Council of Alternative Political Parties v.
Hooks , 179 F.3d 64, 68-69 (3d Cir. 1999).
Appellants only assert in this case the longstanding precedent that supports
the fundamental right of individual voters to participate at all integral stages of the
election process, including the States Primary Election.
ii. The District Court Mistook A Claim Concerning A VotersFundamental Right For A Challenge To A Political PartysState-Granted Right.
The lower court erred by relying on precedent related to the private purpose
of Candidate Nomination Proceedings, rather than relying on precedent related to
the public purpose of the election process.
A primary can be either partisan or non-partisan. Partisan primaries come in
many forms, depending on the access and ballot options a voter is afforded. A
partisan primary election is best conceived as individual Candidate Nomination
Proceedings conducted at the same time for each qualified political party. Partisan
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primaries are practiced in forty-seven (47) of fifty (50) states. However, regardless
of their peculiarities, partisan primaries always serve the same predominantly
private purpose. See e.g. Jones , 530 U.S. at 573-73 (The purpose of a partisan
primary is for members of political parties to nominate candidates for the general
election and elect party officers.).
Because partisan elections are conducted predominantly for the private
purpose of selecting a political party nominees, a political partys private right of
association attaches. Unsurprisingly, our cases vigorously affirm the special place
the First Amendment reserves for, and the special protection it accords, the process
by which a political party select[s] a standard bearer who best represents the
partys ideologies and preferences. Id . at 575 (quoting Eu, 489 U.S. at 224).
However, the state-granted rights created by a partisan Primary Election
must be balanced with an individual voters fundamental right to vote. The rights
of party members may to some extent offset the importance of claimed conflicting
rights asserted by persons challenging some aspect of the candidate selection
process. Nader v. Schaffer , 417 F. Supp. 837, 845 (D. Conn. 1976) affd, 429 U.S.
989 (1976).
As the ruling in Nader presupposes, the fundamental rights of individual
voters may to some extent offset the importance of the claimed conflicting rights
asserted by persons defending the candidate selection process. But the lower
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courts reliance on Nader , a summarily affirmed case concerning party rights, to
summarily dismiss a case concerning individual rights, is inappropriate. See JA A-
10.
The lower courts reliance on Nader fails to recognize that the First
Amendment rights granted to the Republican and Democratic parties by the State,
and defended by the parties in that case, must be offset by the conflicting rights
asserted by Appellants in this case. The rejection of the right of an independent
voter to participate in a political partys Candidate Nomination Proceeding does
not justify ignoring the right of all voters to full and equal participation in the
electoral process altogether, including the Primary Election.
Private rights and public rights, when conflicting, must be balanced. No
one would deny that the equal protection clause would also prohibit a law that
would expressly give certain citizens a half-vote and others a full vote. . . . Such
discriminatory legislation seems to me exactly the kind that the equal protection
clause was intended to prohibit." Wesberry v. Sanders , 376 U.S. 1, 19 (1964).
In properly balancing these conflicting rights, it is important to re-emphasize
the fundamental nature of the individual right to vote and the State-granted nature
of the political parties First Amendment rights in any state funded, administered,
and sanctioned Candidate Nomination Proceedings. A state can, for example,
create a primary election for an exclusively public purpose, without conferring
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political parties with any right to a state funded, administered, and sanctioned
private Candidate Nomination Proceeding. A nonpartisan primary, for example, is
conducted for an exclusively public purpose. While nonpartisan primaries can vary
in form based on other particularities, their purpose is constant: to provide the
machinery to narrow the candidate field for the general election. See Washington
State Grange , 552 U.S. at 453.
While the fate of partisan open primaries is currently under litigation, open
nonpartisan primaries have withstood constitutional scrutiny. See supra footnote
20; Washington State Grange , 552 U.S. at 458. The Supreme Court stated that
under such a nonpartisan system, a State may ensure more choice, greater
participation, increased privacy and sense of fairness all without severely
burdening a political partys First Amendment right of association. Jones , 530
U.S. at 586.
This is because nonpartisan elections avoid the parties First Amendment
concerns altogether. The top two candidates from the primary election proceed to
the general election regardless of their party preferences. Whether parties nominate
their own candidates outside the state-run primary is simply irrelevant. In fact,
parties may now nominate candidates by whatever mechanism they
choose. Washington State Grange , 552 U.S. at 453.
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In this case, Appellants suggest that any state-granted right to a political
party must be measured against its consequence to the fundamental rights of each
individual voter. Appellants further contend that the States legitimate interests in
the structure of its election process, including each integral stage thereof, should
ensure more choice, greater participation, increased privacy, and a sense of fairness.
When more than forty-seven percent (47%) of all New Jersey voters have
chosen not to join a major political party, these legitimate interests can only be
accomplished when any individuals fundamental right to vote attaches to every
integral stage of the election process, unqualified and unconditioned by party
membership.
Therefore, the court erred when it relied on precedent related to an
independent voters right to vote in a political party's Candidate Nomination
Proceedings rather than relying on precedent related to the right of all individual
voters to cast a meaningful vote.
II. ARGUMENT ON THE STATE CLAIMS
A. The Shield Of State Sovereignty Does Not Apply To State ClaimsBecause The Suit Is Actually Against the Individual Charged WithEnforcement Of The State Law
As the lower court recognized, [t]he theory behind Young is that a suit to
halt the enforcement of a state law in conflict with the federal constitution is an
action against the individual officer charged with that enforcement," and is thus not
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really a suit against the state itself. MCI Telecomm. Corp. v. Bell Atlantic Pa. , 271
F.3d 491, 506 (3d Cir. 2001) (citing Ex parte Young , 209 U.S. 123, 159-60 (1908)).
When this is the case, the officer is stripped of his or her official or representative
character and becomes subject to the consequences of his individual conduct. See
Young , 209 U.S. at 159-160.
The State law at issue in this case is New Jerseys constitutional prohibition
against the use of taxpayer funds for a private purpose. N.J. Const., Art. VIII, Sect.
III, Para. 3. If the States Primary Election is in conflict with the federal
constitution, then it cannot serve a legitimate public purpose. Therefore, when
Appellee funds, administers, and sanctions an unconstitutional Primary Election,
she violates State law while she is stripped of her official or representative
character.
Therefore, the state claims are properly before the court.
CONCLUSION
Appellants have a fundamental right to vote at each integral stage of New
Jerseys election process, unqualified by a requirement that they join a political
party. The States Primary Election is an integral stage of New Jerseys election
process.
Therefore, the order of the lower court dismissing this action should be
reversed.
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Dated: November 3, 2014
Respectfully Submitted,
/s/ Samuel GregorySamuel GregoryLAW OFFICES OF SAMUEL GREGORY16 Court Street, Suite 2008Brooklyn, NY 11241Tele: (718) 222-2992Email: [email protected]
/s/ S. Chad PeaceS. Chad Peace PEACE CROWELL LLP3625 5th AvenueSan Diego, CA 92103Tele: (858) 522-0059Email: [email protected]
/s/ Harry KreskyHarry KreskyLAW OFFICE OF HARRY KRESKY
505 West 54th Street, Suite 419 New York, NY 10019Tele: (212) 581-1516Email: [email protected]
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CERTIFICATE OF BAR MEMBERSHIP
SAMUEL GREGORY certifies as follows:
1. I am a member in good standing of the bar of the United States Court of
Appeals for the Third Circuit. S. Chad Peace and Harry Kresky are also
members in good standing of the bar of the United States Court of
Appeals for the Third Circuit.
2. Pursuant to 28 U.S.C. 1746, I certify under penalty of perjury that the
foregoing is true and correct.
Dated: November 3, 2014
/s/ Samuel GregorySamuel Gregory
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48
CERTIFICATE OF COMPLIANCE
SAMUEL GREGORY certifies as follows:
1. This brief complies with the page limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 10,445 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word in font 14, Times New Roman.
3. The text of the electronic and hard copy forms of this brief are identical.
4. I caused the electronic version of this brief to be checked for computer
viruses using Avast Security 2015, version 10.0. No computer virus wasfound.
5. Pursuant to 28 U.S.C. 1746, I certify under penalty of perjury that the
foregoing is true and correct.
Dated: November 3, 2014
/s/ Samuel GregorySamuel Gregory
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49
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Third Circuit by using the
appellate CM/EMF system on November 3, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: November 3, 2014
/s/ Samuel GregorySamuel Gregory
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JOINT APPENDIX, VOLUME I OF II
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TABLE OF CONTENTSPAGE
Volume I of II(Bound with Appellants Brief)
Plaintiffs Notice of Appeal, dated September 9, 2014 . . . . . . . . . . . . . . . . . . . A-1
Opinion of the Honorable Stanley R. Chesler Appealed From,dated August 14, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-3
Order of the Honorable Stanley R. Chesler Appealed From,dated August 14, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-15
Volume II of II
Docket Entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-17
Complaint for Violation of Civil Rights Under 42 U.S.C. 1983,N.J.S.A. 10:6-2(c), The United States Constitution, and TheNew Jersey State Consti tution, dated March 5, 2014 . . . . . . . . . . . . . . . . A-23
Defendants Notice of Motion to Dismiss Pursuant toFed. R. Civ. P. 12(B)(1) and (6), dated May 9, 2014 . . . . . . . . . . . . . . . . A-48
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UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
VICINAGE OF NEWARK
|MARK BALSAM, CHARLES DONAHUE,|HANS HENKES, REBECCA FELDMAN, |JAIME MARTINEZ, WILLIAM CONGER,|TIA WILLIAMS, INDEPENDENT VOTER|PROJECT, and COMMITTEE FOR A |UNIFIED INDEPENDENT PARTY, |INC. |
(D/B/A INDEPENDENTVOTING.ORG) | CIVIL ACTION| NO. 14-01388 (SRC-CLW)
Plaintiffs, | JUDGE STANLEY R. CHESLER |
v. ||
KIM GUADAGNO, in her official |capacity as New Jersey Secretary of |State |
|Defendant. |
NOTICE OF APPEAL
Notice is hereby given that Mark Balsam, Charles Donahue, Hans Henkes,
Rebecca Feldman, Jaime Martinez, William Conger, Tia Williams, Independent Voter
Project, and Committee for a Unified Independent Party, Inc. (d/b/a/
IndependentVoting.org), plaintiffs in the above-named case, hereby appeal to the United
States Court of Appeals for the Third Circuit from the August 14, 2014 Order and
opinion which granted the defendants Motion to Dismiss the complaint.
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Respectfully submitted,
/s/ Samuel Gregory
Samuel GregoryLAW OFFICES OF SAMUEL GREGORY16 Court Street, Suite 2008Brooklyn, NY 11241Tele: (718) 222-2992Email: [email protected]
/s/ S. Chad PeaceS. Chad Peace, admitted pro hacPEACE CROWELL LLP3625 5th AvenueSan Diego, CA 92103Tele: (858) 522-0059Email: [email protected]
/s/ Harry KreskyHarry Kresky, admitted pro hacLAW OFFICE OF HARRY KRESKY505 West 54th Street, Suite 419
New York, NY 10019Tele: (212) 581-1516Email: [email protected]
Attorneys for Plaintiffs
Dated: September 9, 2014
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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY
MARK BALSAM, CHARLESDONAHUE, HANS HENKES, REBECCAFELDMAN, JAIME MARTINEZ,WILLIAM CONGER, TIA WILLIAMS,INDEPENDENT VOTER PROJECT, andCOMMITTEE FOR A UNIFIEDINDEPENDENT PARTY, INC.,
Plaintiffs,v.
KIM GUADAGNO, in her official capacityas New Jersey Secretary of State,
Defendant.
:::::::::
::::::::
Civil Action No. 14-01388 (SRC)
OPINION
CHESLER , District Judge
The Complaint filed in this case challenges the manner in which New Jersey conducts its
primary elections, the process by which political parties as defined by New Jersey law choose
candidates for a general election. The Complaint raises a number of claims under the federal
Constitution and its New Jersey counterpart. Plaintiffs are a collection of individual voters and
not-for-profit entities who ask this Court to enter judgment (1) declaring unconstitutional certain
laws governing New Jerseys primary elections and the way those elections are funded, and (2)
ordering Defendant Kim Guadagno (Defendant) to implement a constitutional . . . primary
election system. (Compl. at 20.) Defendant now moves to dismiss the Complaint, pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Docket Entry 11.] For the foregoing
reasons, the motion will be granted, and the Complaint dismissed with prejudice.
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BACKGROUND
Under New Jersey law, general elections are held on the Tuesday next after the first
Monday in November . . . . N.J. Stat. Ann 19:2-3. Primary elections, by which the members
of a political party in this State or any subdivision thereof nominate candidates to be voted for at
the general elections, N.J. Stat. Ann. 19:1-1, are held the preceding June. See N.J. Stat. Ann.
19:2-1. Pursuant to N.J. Stat. Ann. 19:45-1, all primary elections for general elections and
primary elections for delegates and alternates to national conventions are conducted at the
expense of the state or its political subdivisions. According to the Complaint, New Jersey
spent at least $12 million conducting non-presidential special primary elections in 2013.
(Compl. 34.)
New Jersey, similar to at least a dozen other states, limits participation in primary
elections to members of the political party conducting the primary. N.J. Stat. Ann. 19:23-45. 1
This process is known as a closed primary. States differ regarding the steps a prospective
primary voter must takes to be eligible to participate in the primary; New Jersey conditions that
right on a voter being either newly registered at the first primary at which he is eligible to vote
or deemed . . . a member of that party fifty-five days before the primary election. Id. There is
no dispute that the only political parties currently recognized by New Jersey law are the
Republican and Democratic parties. See N.J. Stat. Ann. 19:1-1 (defining political party to
mean any party that garners at least 10% of the total vote cast in the last statewide election for
New Jerseys General Assembly).
Candidates who are unaffiliated with a political party read, those who are not
Republicans or Democrats and who seek placement on the general election ballot do so by way
1 For instance, Pennsylvania, Delaware, and New York all conduct closed primaries. See 25Pa. Cons. Stat. 2812; Del. Code. Ann. tit. 15, 3110; N.Y. Elec. Law 5-300 to -310.
2
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of a statutorily prescribed petition process. See N.J. Stat. Ann. 19:13-3 to -13. As the
Third Circuit describes this process, unaffiliated candidates bypass the primary election and
proceed directly to the general election upon submission of a petition that comports with New
Jersey law and which contains the requisite amount of signatures. See Council of Alternative
Political Parties v. Hooks, 179 F.3d 64, 68-69 (3d Cir. 1999). In many ways, the direct
nomination by petition process presents lower ballot access hurdles to a candidate for public
office than does the primary process. See id. at 79. For instance, unaffiliated gubernatorial
candidates need to collect fewer signatures than their political party counterparts; unaffiliated
candidates also receive nearly two months more time to gather signatures for a general election
nominating petition than do those candidates seeking access to a primary election ballot. See id.
at 68.
Plaintiffs allege this statutory regime, and specifically N.J. Stat. Ann. 19:23-45,
constitutionally disenfranchises them and violates their First and Fourteenth Amendment
rights, including their associational and non-associational rights and their rights under the Equal
Protection clause. 2 According to Plaintiffs, the fundamental right to vote extends to primary
elections, (Compl. 1), and New Jersey violates this right by conditioning primary participation
on voter affiliation with a political party approved by the State . . . . (See id. at 2.)
Consequently, by denying New Jerseys 2.6 million registered unaffiliated voters the right to
cast a vote in primary elections, the State has disenfranchised nearly half of its electorate . . . .
(Id. at 5.) The Complaint also asserts a trio of state law claims, two of which for violations of
the New Jersey Civil Rights Act, N.J. Stat. Ann. 10:6-2(c) and the right to vote secured by
2 The Complaint asserts a claim under 42 U.S.C. 1983 (Count One), as well as three separatefederal constitutional claims (Counts Three, Five, and Six). The Court exercises jurisdictionover these causes of action pursuant to 28 U.S.C. 1331.
3
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Article II, Section I of the New Jersey Constitution mimic Plaintiffs federal claims. The third
state law claim alleges that because primary elections are conducted at the expense of the state,
N.J. Stat. Ann. 19:45-1, those elections unconstitutionally appropriate public funds for a
private purpose in violation of Article VIII, Section III of the New Jersey Constitution. (Compl.
72.) 3
Defendant now moves to dismiss, arguing that N.J. Stat. Ann. 19:23-45 is a
constitutionally permissible way to regulate the manner in which political parties select their
candidates for the general election ballot. (Mov. Br. at 13, 18.) Defendant also contends that all
three state law claims should be dismissed on Eleventh Amendment sovereign immunity grounds
and that Plaintiffs lack standing to assert their Article VIII, Section III claim. (See Mov. Br. at
19, 21.)
DISCUSSION
A. Federal Constitutional Claims
Any attempt to use the Constitution to pry open a state-sanctioned closed primary system
is precluded by current Supreme Court doctrine, and Plaintiffs federal claims must therefore be
dismissed. Specifically, [t]he Supreme Court has emphasized with increasing firmness that
the First Amendment Guarantees a political party great leeway in governing its own affairs.
Maslow v. Bd. of Elections of City of New York, 658 F.3d 291, 296 (2d Cir. 2011) (citing, inter
alia , N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 197 (2008), Cal. Democratic Party v.
Jones, 530 U.S. 567 (2000), and Tashjian v. Republic Party of Conn., 479 U.S. 208 (1986)).
3 The state law claims (Counts Two, Four, and Seven) are before the Court pursuant to thesupplemental jurisdiction statute, 28 U.S.C. 1367(a). (See Compl. 9.) Count Eight, whichalleges that the closed primary system affords private political parties special access to thevoting franchise in violation of the federal and New Jersey constitutions, appears to be aduplicative amalgamation of the first seven claims.
4
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This power reaches its apex in the primary context. Tashjian, 479 U.S. at 216 (selecting the
Partys candidates is the critical juncture at which the appeal to common principles may be
translated into concerted action, and hence political power in the community). Indeed, [i]n no
area is the political associations right to exclude more important than in the process of selecting
its nominee . . . . See Jones, 530 U.S. at 575.
For example, to help prevent party raiding, 4 the Supreme Court has upheld against a
constitutional challenge a New York law that required voters wishing to vote in New Yorks
closed primary elections to have enrolled in the party of their choice at least thirty days prior to
the previous general election. See Rosario v. Rockefeller, 410 U.S. 752, 760-62 (1973)). More
recently, in California Democratic Party v. Jones, the Court invalidated Californias blanket
primary, reasoning that it [unconstitutionally] permitted non-party-members to determine the
candidate bearing the partys standard in the general election. See Lopez Torres, 552 U.S. at
203 (citing Jones, 530 U.S. at 575). 5 Jones, in no uncertain terms, held that a political partys
interest in excluding non-members trumps a non-members interest in sharing in the partys
nominating process. See 530 U.S. at 583 (a nonmembers desire to participate in the partys
affairs is overborne by the countervailing and legitimate right of the party to determine its own
4 Party raiding occurs where voters in sympathy with one party designate themselves as votersof another party so as to influence or determine the results of the other partys primary. Rosariov. Rockefeller, 410 U.S. 752, 760 (1973).
5 As the Supreme Court explains, blanket and open primaries are fundamentally different. Inthe former, each voters primary ballot . . . lists every candidate regardless of party affiliationand allows the voter to choose freely among them. Jones, 530 U.S. at 570. In the latter, anyregistered voter can vote in the primary of either party. Democratic Party of U.S. v. Wis. ex rel.La Follette, 450 U.S. 107, 111 n.4 (1981) (internal quotation omitted). In other words, thechoice of candidate in an open primary is more circumscribed, in that the voters choice islimited to [one] partys nominees for all offices. [An open primary voter] may not, for e